Allen v. First Nat. Bank of Rockford

• Decision Date: 31 December 1920
• Docket Number: No. 33098.,33098.
• Citation: 180 N.W. 675,191 Iowa 492
• Parties: ALLEN v. FIRST NAT. BANK OF ROCKFORD.
• Court: Iowa Supreme Court

191 Iowa 492

180 N.W. 675

ALLEN

v.FIRST NAT. BANK OF ROCKFORD.

No. 33098.

Supreme Court of Iowa.

Dec. 31, 1920.

Appeal from District Court, Floyd County; C. H. Kelly, Judge.

The plaintiff charges defendant has converted described personal property and should be made to respond to plaintiff in damages. He has verdict and judgment for $2,508.79. Defendant appeals. Reversed and remanded.C. S. Moore, of Rockford, and F. & F. M. Linnell, of Charles City, for appellant.

H. J. Fitzgerald and J. C. Campbell, both of Charles City, for appellee.

SALINGER, J.

I. The plaintiff has a chattel mortgage made to him by W. C. Allen and Mary E. Allen on the 24th day of August, 1917. It secures an indebtedness of $4,000, and covers certain described live stock and certain crops raised by W. C. Allen as the tenant of the defendant bank. Plaintiff alleges, in a petition in which the appellant and others are made defendants, that the defendant bank willfully and wrongfully seized said property, caused same to be sold, and appropriated the proceeds of the sale to its own use; that said property is worth $4,000; and that by reason of the foregoing matters the defendant is indebted to plaintiff in that sum, with interest at 6 per cent. from the 1st day of November, 1917.

One affirmative defense interposed by the defendant bank is that it has been duly adjudged in the past that the bank has title and claim to the property in question superior to that of the plaintiff, and that therefore he may not maintain his suit in conversion. The record shows the bringing of a suit in a cause No. 7619 of the Floyd disstrict court, wherein Z. T. Mitchell and Wm. F. Johannaber, trustees, were plaintiffs, and W. C. Allen, the maker of the mortgage upon which plaintiff now relies, plaintiff himself, and also the defendant bank, were made defendants. The petition in case No. 7619 truly asserted the giving of a real estate mortgage and also a chattel mortgage by Wm. C. Allen, the maker of the mortgage upon which plaintiff relies in the present suit, which two mortgages secured certain described notes. The real estate mortgage had a clause authorizing the court “to appoint a receiver for the benefit of the mortgages of the rents, issues and profits.” The petition prayed foreclosure of both mortgages; that a receiver be appointed to take charge of the property described in the chattel mortgage who should sell same under the direction of the court and apply the proceeds on the mortgage indebtedness. It is further prayed that the lien of the plaintiffs under the chattel mortgage be decreed to be paramount and superior to the interest and claims of all defendants in and to said property; that the equity of redemption of all defendants as to the mortgaged personal property be foreclosed; and that an execution issue to sell respectively the real and the chattel property mortgaged. By the decree and an amendment of same the relief prayed was in effect granted, and the chattel property was sold on special execution, as per decree. It is the undisputed testimony that at the sales A. H. Allen, the present plaintiff, was present and made no objection, and he bought some of the property at the sale.

The appellant bases a plea of adjudication upon said matters.

II. The appellee makes several attacks upon the validity of the alleged adjudication. One of them is that the chattel mortgage upon which the defendant bank relies did not cover the property described in the chattel mortgage upon which plaintiff relies. Another is that the decrees relied on as an adjudication are fraudulent as against this plaintiff, and that they were obtained by committing a fraud upon the court, in that when the decree was obtained the plaintiff “knew that the original notice in no manner apprised this plaintiff of matters set out in the decree as to crops.”

It must suffice to say there is no evidence that any fraud was practiced upon the court, and that the evidence heavily preponderates for the claim that the property described in the chattel mortgage upon which plaintiff relies, and that described in the mortgage upon which defendant bank relies are identical. In fact, the only contention which appellee seems to make with seriousness is “that the original notice in no manner apprised this plaintiff of matters set out in the decree as to crops.” It will be noted, then, that virtually there is no attack upon the adjudication asserted except that the original notice did not sufficiently refer to the crops. This would seem to work that no attack is made on the adjudication except in so far as it deals with the crops which were raised under a lease running from June, 1917, to February, 1918.

[1] The decree in 7619 recites that the court is acting upon “having inspected the original notice and the services,” and that it thereupon “expressly finds that all the named defendants have been duly and legally served with a sufficient notice according...